JUDGMENT : M.K.THAKKER, J. 1 The present First Appeal is filed by the appellant, who was the original opponent in Workmen’s Compensation Case (Fatal) No. 55 of 2003 filed before the learned Employees’ Compensation Commissioner, Ahmedabad, under the Workmen’s Compensation Act. By judgment and award dated 16.03.2020, the learned Commissioner awarded compensation of Rs. 2,30,255/- along with simple interest at the rate of 12% per annum from 16.08.2002 till its actual realization, and imposed a penalty at the rate of 35% of the awarded amount. Factual Matrix: 2 It is the case of the present appellant that the accident occurred on 16.07.2002 when the deceased, Kantibhai, was travelling as a pillion rider in a rickshaw driven by one Haribhai Devsinhbhai Parmar. While they were passing through Odhav Road, after crossing the Soni’s Chawl cross-road, where Haribhai intended to collect money from an auto-parts shop, a Tata Sumo vehicle came from the side of the rickshaw in a rash and negligent manner and dashed against it. As a result, the rickshaw turned turtle and the deceased sustained grievous injuries, which ultimately resulted in his death, giving rise to the fatal claim before the learned Commissioner. 2.1 The heirs of the deceased filed the claim petition claiming an amount of Rs. 3,25,000/- along with interest at the rate of 12% per annum and costs of Rs. 10,000/-, alleging that the deceased Kantibhai was an employee engaged in the work of packaging and delivery of bales/parcels of the appellant company. It was further alleged that the accident dated 16.07.2002 occurred during the course of employment of the deceased with the appellant company, when he was returning after unloading the goods of the appellant company. 2.2 In order to substantiate the claim, reliance was placed by the opponent–claimants on documents such as the gate pass, delivery book, and Xerox copies of bills. The present appellant appeared before the learned Commissioner and filed a detailed reply contending that the deceased Kantibhai was never employed as a workman of the appellant company at any point of time. It was specifically denied that any employer–employee relationship existed between the appellant company and the deceased, and therefore, the claim petition was sought to be dismissed on the ground of non-maintainability. 2.3 It was further contended that none of the employees of the appellant company were engaged in the work of packaging or delivery of bales/parcels. It was specifically denied that any employer–employee relationship existed between the appellant company and the deceased, and therefore, the claim petition was sought to be dismissed on the ground of non-maintainability. 2.3 It was further contended that none of the employees of the appellant company were engaged in the work of packaging or delivery of bales/parcels. The regular practice of the appellant company was to transport goods through hired tempos, and the tempo drivers were paid a lump-sum amount for transportation. It was asserted that on 16.07.2002, the tempo driven by Haribhai was hired independently, and Haribhai, for his own requirement and convenience, engaged the deceased Kantibhai. Therefore, the appellant company had no role whatsoever in the accident, and no liability could be fastened upon it under the Workmen’s Compensation Act. While adjudicating the claim petition, the learned Commissioner framed the following issues for determination and answered them accordingly: (1). Whether the applicants proves that there was relationship of an employer and employee between the deceased and the opponent? Answer is Affirmative. (2). Whether the applicants proved that deceased died during the course of his employment? Answer is Affirmative. (3). What was the age of deceased at the time of accident? Answer: The age of the deceased at the relevant time of accident was 38 years. (4). What was the monthly wages of deceased at the time of accident? Answer: The monthly wages of the deceased at the relevant time of accident was Rs.2,250/-. (5). Whether the applicants proves that the opponent is liable for paying compensation? Answer is Affirmative. The opponent is liable for paying, the applicants Rs.2,13,255/- as an amount of compensation. (6). Who is liable amongst the opponents to pay the amount of compensation for the death of deceased? Answer: The opponent is liable for paying, the applicants Rs.2,13,255/- as an amount of compensation. (7). Who amongst the opponents are liable for paying interest and penalty? Answer is Affirmative. The opponent is liable for paying simple interest @ 12 percent on the amount of compensation from dt.16-8-2002 till realization of it. The opponent is also liable for paying thirty five percent of the amount of compensation as an amount of penalty to the applicants. (8). Whether the opponents are liable for paying interest and penalty? If yes than who and what amount? The opponent is also liable for paying thirty five percent of the amount of compensation as an amount of penalty to the applicants. (8). Whether the opponents are liable for paying interest and penalty? If yes than who and what amount? Answer is Affirmative: The opponent will be liable to pay simple interest and penalty as replied in issue no.7. (9). What order? As per final order. 3 In order to prove the aforesaid issues, the claimant examined the witness Fuljibhai Dabhi below Exhibit-14, who is the power of attorney holder of the claimant; Shri Haribhai Parmar below Exhibit-25, who is the owner of the rickshaw and Shri Zala Kalajibhai Babaji, who is an ex-employee of the company. In addition thereto, the claimant produced documentary evidence in the nature of the police complaint lodged by Haribhai Parmar below Exhibit-15, the statement of the deceased recorded below Exhibit-16, the gate passes of the opponent company below Mark-12/7 to 12/8, and the original delivery challans and invoices below Mark- 12/9 and 12/10. The present appellant also examined its witness Shri Nitinbhai Chandulal Shah below Exhibit- 43 and produced documentary evidence in the nature of the muster roll of staff members for February 2002, muster roll of workmen for February 2002, salary statements from January 2002, identity card register, and ESI challans, in order to establish its defence with regard to the absence of an employer-employee relationship. The learned Commissioner, considering the evidence placed on record to decide the issues, partly allowed the claim petition and directed the present appellant to pay compensation, which is the subject matter of challenge before this Court. 4 Heard the learned advocate Mr.Himesh Naidu for the appellant. 5 Learned advocate Mr. Naidu submits that the learned Commissioner erred in not appreciating that the onus to prove the existence of an employer–employee relationship squarely lies upon the claimant, and the same ought to have been discharged by producing cogent documentary evidence such as appointment letters, written contracts, attendance registers, or leave records. However, in the absence of such material evidence, the learned Commissioner has relied solely upon the gate pass, delivery book, and xerox copies of invoices to conclude that there existed an employer– employee relationship between the deceased and the appellant company. 5.1 It is submitted by the learned advocate Mr. However, in the absence of such material evidence, the learned Commissioner has relied solely upon the gate pass, delivery book, and xerox copies of invoices to conclude that there existed an employer– employee relationship between the deceased and the appellant company. 5.1 It is submitted by the learned advocate Mr. Naidu that, as per the admitted stand of the power of attorney holder of the claimant, no documentary evidence was available to establish that the deceased was working with the appellant company. Despite this, relying upon self-serving statements and averments, the learned Commissioner has held that the relationship of employer and employee stood established between the parties. It is further submitted by the learned advocate Mr. Naidu that the gate pass and delivery challans were admittedly handed over to the rickshaw driver, namely Haribhai, who also died in the same accident, and the deceased was merely accompanying him. Therefore, such documents, which would naturally remain in the possession of the driver, cannot be treated as conclusive evidence to establish a master–servant relationship between the deceased and the appellant company. 5.2 Learned advocate Mr. Naidu further submits that, in the absence of any direct evidence, the learned Commissioner has completely ignored the muster rolls, salary statements, and identity card register produced by the appellant, which do not reflect the name of the deceased. Hence, the impugned judgment deserves to be set aside on this ground alone. It is also submitted by the learned advocate Mr. Naidu that the appellant establishment is covered under the Employees’ State Insurance Act and possesses a valid ESI code number. The learned Commissioner, without considering the applicability of the ESIC Act, has committed a serious error in law, rendering the impugned judgment unsustainable. Learned advocate Mr. Naidu further submits that the learned Commissioner has erred in holding that the appellant had withheld documentary evidence below Exhibits 44 and 45, which were produced at a later stage. It is submitted that the muster roll and other documentary evidence were duly produced however, they were not exhibited solely on the ground that the said documents were not specifically referred to during the course of evidence by the appellant’s witness. 5.3 In view of the above, it is submitted by the learned advocate Mr. It is submitted that the muster roll and other documentary evidence were duly produced however, they were not exhibited solely on the ground that the said documents were not specifically referred to during the course of evidence by the appellant’s witness. 5.3 In view of the above, it is submitted by the learned advocate Mr. Naidu that the learned Commissioner has failed to appreciate the evidence on record in its true letter and spirit, and therefore, the impugned judgment and award deserve to be set aside, and the present First Appeal deserves to be allowed. 6 Having considered the submissions made by the learned advocate Mr. Naidu for the appellant and upon perusal of the detailed reasons assigned by the learned Commissioner, along with the documentary evidence placed on record before this Court, including the duly exhibited documents, the moot question which arises for consideration is whether the learned Commissioner has committed any error in holding that there existed an employer–employee relationship between the deceased and the present appellant company. For the reasons recorded hereinafter, the answer to the said question is in the negative. Discussion: 7 To determine the above point and in the background of the facts narrated hereinabove, the claimant examined three witnesses to establish the employer–employee relationship between the parties. The first witness, namely Fuljibhai Dabhi, was examined below Exhibit 14. On perusal of his evidence, it is established that the deceased was his nephew and that he was working with the appellant mill since 1992 and was drawing daily wages of Rs.75/-. It is further established from his deposition that the accident occurred on 16.07.2002. The said witness also produced documentary evidence in the nature of police papers, which were exhibited below Exhibits 15 to 20. The said witness denied the suggestion that he had no personal knowledge of the case and has deposed in his capacity as the power of attorney holder of the claimant. He stated that on 16.07.2002, Haribhai was sent by the appellant company to unload goods along with its employee, namely Kantibhai, who was working in the mill, and that while returning after delivery of the goods, the accident occurred. The suggestion put to him that Haribhai used to keep one person with him was answered as “not known”. He stated that on 16.07.2002, Haribhai was sent by the appellant company to unload goods along with its employee, namely Kantibhai, who was working in the mill, and that while returning after delivery of the goods, the accident occurred. The suggestion put to him that Haribhai used to keep one person with him was answered as “not known”. It further emerges from his evidence that he was informed about the accident and the death of his nephew in the evening of 16.07.2002, and that such information was conveyed to him by Kanajibhai Babaji over the phone. 8 The claimant also examined witness No.2, namely Haribhai Devsinhbhai Parmar, below Exhibit 25, who is the owner of the vehicle in which the goods of the appellant company were loaded and sent for delivery. From the evidence of the said witness, it emerges that on 16.07.2002 he went along with Kantibhai, who was serving with the appellant company, to deliver the goods of the company at Prem Darwaja. While returning back to the company, his rickshaw met with an accident, and both of them were admitted to Shardaben Hospital. Kantibhai sustained grievous injuries and subsequently died during the course of treatment. The said witness deposed that while Kantibhai was alive, he had lodged a complaint, and the statement of the deceased was also recorded by the police. It is further deposed by this witness that he had been working for several years in delivering the goods of the appellant company and that, as per the practice of the company, one person was deputed along with him for the security of the goods as well as the cash. On the day of the accident, Kantibhai was sent by the appellant company for the said purpose. He further stated that, as per the practice, after delivery of the goods he used to drop the employee back at the company premises and thereafter collect the fare for delivery of the goods. He categorically stated that Kantibhai had accompanied him on around 30 to 40 occasions for delivery of the goods of the appellant company. 8.1 The last witness examined by the claimant was Kalajibhai Babaji below Exhibit 31. He deposed that he was working with the deceased in the appellant establishment since 1994. He further stated that apart from him, other persons namely Zala Dulaji Chagaji and Kantibhai Dabhi were also working in the establishment. 8.1 The last witness examined by the claimant was Kalajibhai Babaji below Exhibit 31. He deposed that he was working with the deceased in the appellant establishment since 1994. He further stated that apart from him, other persons namely Zala Dulaji Chagaji and Kantibhai Dabhi were also working in the establishment. He deposed that he had demanded an attendance card, payslip, and salary for overtime work, however, the management denied the same and thereafter started harassing him, which ultimately resulted in his termination from service along with Punaji Hajurji and Dhoraji Chagaji. He further deposed that Kantibhai was continued in service owing to his weak financial condition and that the deceased was performing the work of tying bales and delivering goods. During cross-examination, he stated that he discontinued his services with the company in the year 1997. 8.2 It is also required to be noted that the police complaint lodged by the rickshaw driver Haribhai was exhibited below Exhibit 15 and the statement of the deceased was produced below Exhibit 16. In his statement, the deceased stated that he was working with the appellant company from 08:30 a.m. to 06:30 p.m. and that his duties included loading and unloading goods from the vehicle. He further stated that on the date of the accident, at around 01:15 p.m., he had gone in rickshaw No. GJ-1-U-5847 along with the driver for delivery of bales of cloth to Kanraj Harakhchand at Prem Darwaja. While returning back to the company premises, the accident occurred at around 02:30 p.m., in which both the driver and the deceased sustained grievous injuries. 9 One more aspect is required to be considered that on completion of the evidence of the claimant, the appellant–company filed a closing pursis below Exhibit- 37 on 08.10.2014. After a lapse of five years from the said date, an application below Exhibit-41 came to be filed on 03.09.2019 seeking reopening of the stage of oral evidence and permission to exhibit documentary evidence to establish the absence of an employer– employee relationship. The said application was allowed with costs. Thereafter, the affidavit of one witness, namely, Nitinbhai Chandubhai Shah, was filed below Exhibit-43 along with a list of documentary evidence at Exhibits-44 and 45. By the said list, documents such as the muster roll, salary statement, and identity card register were produced. The said application was allowed with costs. Thereafter, the affidavit of one witness, namely, Nitinbhai Chandubhai Shah, was filed below Exhibit-43 along with a list of documentary evidence at Exhibits-44 and 45. By the said list, documents such as the muster roll, salary statement, and identity card register were produced. However, on examination of the said documents, the learned Court observed that the documents pertained to a period prior to ten years and were produced only in xerox form, therefore, their genuineness, particularly at such a belated stage, was disbelieved. In the opinion of this Court, learned trial Court is justified in observing the same. 10 On the other hand, the claimant produced documentary evidence below Exhibits-12/7 to 12/10, which are contemporaneous documents relating to the date of the accident, namely, the gate pass and delivery challan, which are original in nature. It was contended by the learned advocate for the appellant that since the said documents were in the possession of the rickshaw driver, possibility of handing over the same to claimant by power of attorney holder cannot be ruled out. However, be that as it may, in addition to these documents, there exists other cogent evidence on record in the form of testimonies of three witnesses and the statement of the deceased recorded before the police, which can be considered as a statement under Section 32(1) of the Indian Evidence Act. In the opinion of this Court, therefore, no error has been committed by the learned Commissioner in accepting the existence of the employer–employee relationship and in awarding compensation. 11 Learned advocate Mr. Naidu has raised other grounds in the memo of appeal, however, during the course of arguments, he mainly confined his challenge to the issue regarding the existence of the employer–employee relationship. 12 In view of the foregoing discussion, it cannot be said that the learned Court has committed any error in accepting the existence of the employer–employee relationship between the present appellant and the deceased and in awarding compensation. 13 Resultantly, the appeal being devoid of merits is dismissed accordingly. The judgment and award dated 16.03.2020 passed by the learned Employees’ Compensation Commissioner, Ahmedabad, in Workman Case (Fatal) No.55 of 2003 is hereby confirmed. Consequently, the Civil Application also stands disposed of accordingly.